Citation Nr: 0336807
Decision Date: 12/31/03 Archive Date: 01/07/04
DOCKET NO. 02-16 094 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for
the service-connected major depressive disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Cryan, Counsel
INTRODUCTION
The veteran had active service from December 1979 to December
1999.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a June 2002 rating decision by the RO.
(The matter of an increased rating in excess of 30 percent
for the service-connected major depressive disorder is
discussed in the REMAND portion of this document.)
FINDING OF FACT
The veteran's depressive disorder is manifested by depressed
mood, sleep disturbance, irritability, mood swings and
anxiety and is shown to be productive of a disability picture
that more nearly approximates that occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks since service.
CONCLUSION OF LAW
The criteria for the assignment of an initial rating of 30
percent for the service-connected major depressive disorder
have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130 including
Diagnostic Code 9434 (2003)
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran served on active duty from December 1979 to
December 1999. Service medical records reveal that the
veteran sought treatment for depression during service.
In a June 2002 rating decision, the RO granted service
connection for major depressive disorder with an initial 10
percent rating assigned, effective on the effective date of
service connection. The veteran timely appealed the initial
10 percent rating assigned.
In his October 2002 Substantive Appeal (VA Form 9), the
veteran asserted that his service-connected major depressive
disorder was severe enough to warrant a 30 percent
evaluation.
The veteran was afforded a VA examination in April 2002. The
examiner noted that the service medical records revealed that
he was initially treated for anxiety and depression in
approximately 1982. At that time, he denied having had any
specific military or personal problems, but felt anxious and
occasionally dysphoric. What he believed were panic attacks
really were described as anxiety attacks or generalized
anxiety without panic.
The examiner also noted that the veteran was evaluated again
in April 1983 because he applied for a position as an air
traffic controller. With his history of having been treated
for what they had diagnosed at that time as a generalized
anxiety disorder, he had to be evaluated psychiatrically.
The evaluation at that time suggested that there were "no
mental health problems," and that there were no psychiatric
impediments to his becoming an air traffic controller.
There was no treatment again until approximately 1988 when
the veteran reached out for treatment secondary to relatively
strong feelings of anxiety. He had arguments with his wife
and had difficulty with insomnia and in general, felt
"trapped." He was treated initially as an outpatient and
then was admitted to Eglin Air Force Base Hospital in
November 1998 for approximately three weeks.
The discharge diagnoses at that time were those of
generalized anxiety disorder with anxiety attacks (no panic)
and some dysphoria and also Axis II of a Passive-Dependent
Personality Disorder with Obsessive features. He was
assigned a Global Assessment of Functioning (GAF) score of
70-80 at that time. He followed outpatient-wise for a few
months.
His next contact for treatment occurred in approximately 1995
when he was in Japan and lasted for a year or so. He was at
that time diagnosed with a major depressive disorder that was
considered moderate and that included melancholic trends. He
had some trouble with some of the SSRI's, such that he was
placed on Pamelor.
According to the veteran, his next treatment occurred in
approximately 1998 and continued up until the time he was
discharged, according to his report, at Edwards Air Force
Base. He was at that time seen on a quarterly basis only for
medication management and prescribed Serzone and Pamelor.
Since discharge from the military, the veteran reported that
he had been followed on an outpatient basis by his family
care practitioner. He was seen quarterly for medication
management and was taking Tofranil 100 mg hs. He did not
feel that the medication was of much value.
The veteran described himself as being anhedonic and asiergic
and not having much motivation. He described himself as
being unhappy, depressed and having difficulty with loss of
libido and erectile dysfunction. He reported sleeping only
three or four hours a night and having anxiety episodically
and trouble concentrating. He denied having difficulties
with his appetite, and there were no psychotic symptoms. The
veteran reported that things were well with regard to his
marriage and his children.
On mental status examination, the veteran was alert, oriented
in all three spheres, in good contact with routine aspects of
reality and showed no signs or symptoms of psychosis. He
spoke in normal tones, rhythm and rates. His conversation
was relevant, coherent, goal-directed and organized.
There was no question that the veteran appeared to be
somewhat dysphoric in a kind of washed-out way. His affect
seemed sluggish and somewhat underresponsive as well as on
the retiring and withdrawn side. He had a rather unhappy
facial expression, though he was not depressed to the point
of tears or psychomotor retardation.
His memory and intellect were very clearly well above average
capacity. He showed no major impediments in insight or
judgment. He impressed the examiner as a man who had little
or no motivation or energy, had a poor outlook on life, felt
helpless and hopeless and essentially had very low self
esteem, little interest in what was going on around him and
was episodically frightened by his world to the point where
he became overtly anxious.
It was regarded by the examiner as a chronic condition that
had existed from his early childhood and was very apparent
during his military experience and treated there.
The overall clinical impression was one of a major depressive
disorder that was recurrent and appeared to be of moderate to
occasionally moderately severe intensity with some anxiety
features attached. There was also clearly a passive-
dependent personality disorder apparent with related low self
esteem and anxiety about the world's demands.
Based on a review of the available medical records, including
the claims file, as well as the currently conducted clinical
examination, and assuming that the information gathered was
factual and accurate, the examiner opined within a reasonable
degree of scientific-professional certainty that the veteran
exhibited a major depressive disorder, recurrent, moderate to
moderately severe intensity (with some features of anxiety);
Passive-Dependent Personality Disorder, and a Global
Assessment of Functioning (GAF) of 65-70.
The examiner concluded that the veteran had a chronic
depressive disorder with anxiety ever since his childhood and
exposure to an abusive and alcoholic father.
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2003).
Where an increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, at
the time of an initial rating, separate ratings can be
assigned for separate periods of time based on the facts
found-a practice known as "staged" ratings. Fenderson v.
West, 12 Vet. App 119 (1999).
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (2003).
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21 (2003).
The veteran's service-connected major depressive disorder has
been initially rated as 10 percent disabling under 38 C.F.R.
§ 4.130, including Diagnostic Code 9434 (2003). A 10 percent
rating is warranted for occupational and social impairment
due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only
during periods of significant stress, or symptoms controlled
by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code
9434 (2003).
A 30 percent evaluation is warranted when the veteran
exhibits occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, and mild memory loss (such
as forgetting names, directions, recent events). 38 C.F.R. §
4.130, Diagnostic Code 9434 (2003).
In considering the evidence of record, the Board finds that
the level of disability referable to the service-connected
major depressive disorder is shown to more nearly approximate
the criteria for the assignment of an initial 30 percent
rating since the date of the claim of service connection.
Specifically, the veteran has continued to report symptoms
such as depressed mood, anxiety, insomnia and little
motivation with a poor outlook on life.
The examiner indicated that there was no question that the
veteran appeared to be somewhat dysphoric in a kind of
washed-out way. His affect seemed sluggish and somewhat
underresponsive as well as on the retiring and withdrawn
side. He had a rather unhappy facial expression and felt
helpless and hopeless.
The examiner also noted that the veteran had very low self
esteem, little interest in what was going on around him and
who was episodically frightened by his world to the point
where he became overtly anxious.
Importantly, the examiner classified the service-connected
major depressive disorder as recurrent and moderate to
occasionally moderately severe intensity with some anxiety
features attached.
The Board has also considered whether the veteran was
entitled to "staged" ratings for her service-connected low
back disability as prescribed by the Court in Fenderson v.
West, 12 Vet. App. 119 (1999). Since service, the service-
connected disability is shown to have been disabling as
currently rated.
Finally, the Board points out that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
(VCAA) of 2000, which has since been codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp.
2001).
Among other things, this law eliminated the concept of a
well-grounded claim, redefined the obligations of VA with
respect to the duty to assist, and superseded the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that is not well grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of enactment
and not yet final as of that date. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107.
The regulations implementing the VCAA, published at 66 Fed.
Reg. 45,620, 45,630-32 (August 29, 2001), have since been
codified at 38 C.F.R. § § 3.102, 3.156(a), 3.159 and 3.326.
Except as specifically noted, the new regulations are
effective on November 9, 2000.
To the extent that the action taken hereinabove is favorable
to the veteran, the Board finds that the veteran is not
prejudiced thereby and no further assistance in developing
the facts is required.
ORDER
An initial rating of 30 percent for the service-connected
major depressive disorder is granted, subject to the
regulations controlling the disbursement of VA monetary
benefits.
REMAND
The veteran asserts that he is entitled to an increased
rating for the service-connected major depressive disorder.
The Board notes that the statutes governing assistance to
claimants and the benefit of the doubt were recently amended
via the Veterans Claims Assistance Act of 2000 (VCAA), Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002).
This law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order)
(holding that VA cannot assist in the development of a claim
that is not well grounded).
This change in the law is applicable to all claims filed on
or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of enactment
and not yet final as of that date. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107.
The regulations implementing the VCAA are codified at
38 C.F.R. § § 3.102, 3.156(a), 3.159 and 3.326). Except as
specifically noted, the new regulations are effective
November 9, 2000.
In Quartuccio v. Principi, 16 Vet. App. 183 (2002), the
United States Court of Appeals for Veterans Claims (Court),
interpreted the VCAA to require that the VA has a duty to
notify the veteran as to the laws and regulations governing
his appeal, to provide notice as to the type of evidence
necessary to substantiate the claims, to provide notice of
the veteran's responsibility to provide evidence, and to
provide notice of the actions taken by VA. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
In this case, the RO did in fact provide two letters to the
veteran, one in March 2002 and the other in May 2002, in
compliance with the VCAA directives, and the directives set
forth in Quartuccio.
However, these letters provided the requisite duty to assist
for the initial claim of service connection. The RO
thereafter failed to provide the requisite letter to the
veteran after he appealed the initial rating assigned
subsequent to the grant of service connection.
As such, the Board finds that the veteran has not been
properly notified of the VCAA and that the RO has not
fulfilled its duty to assist the veteran in this case with
regard to the increased rating issue.
The RO in this regard should afford the veteran an
opportunity to present all pertinent treatment records or
evidence in support of his claim for increase. In addition,
the RO should undertake any other indicated development
deemed necessary.
Accordingly, the case is REMANDED to the RO for the following
action:
1. The RO must advise the veteran of the
provisions of VCAA and provide him with
that notice required by 38 U.S.C.A.
§ 5103(a). With regard to the claim for
increase, the notice must advise the
veteran that an initial 30 percent rating
has been assigned for the service-
connected major depressive disorder and
tell him what evidence is needed to show
an increase in severity in excess of 30
percent, including, but not limited to
private and/or VA treatment records.
2. The veteran must also be advised that
it is his responsibility, and his alone,
to provide the foregoing evidence, but
that VA will make reasonable efforts to
obtain relevant evidence, such as VA and
non-VA medical records, employment
records, or records from government
agencies, if he identifies the custodians
thereof, and that VA will notify him of
evidence he identified that could not be
obtained so that he may obtain the
evidence himself and submit it.
4. Upon completion of the foregoing
development, the RO should review the
veteran's claim for an increased rating
higher 30 percent, if indicated. If this
matter remains on appeal, the RO should
provide the veteran and his
representative with a Supplemental
Statement of the Case (SSOC) in accord
with 38 C.F.R. §§ 19.31 and 19.38. They
should be afforded a reasonable
opportunity to respond thereto.
Thereafter, the case should be returned to the Board for the
purpose of appellate disposition, if indicated. The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran need take no action until otherwise notified, but
he may furnish additional evidence and/or argument during the
appropriate time frame. See Kutscherousky v. West, 12 Vet.
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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